Posts Tagged politics
Lately I’ve received a lot of requests for what is essentially “Law School 101” information. Maybe you already know some (or all!) of the information in these posts. Maybe you knew some of the information once upon a time, but have since forgotten it. Maybe the information is completely new to you. Whatever background you bring to these posts, I invite you to read on, and hopefully this body of work will help some people, in some way.
The federal government has three (3) branches: the executive branch, the legislative branch, and the judicial branch. The executive branch consists of the President of the United States (POTUS), his Cabinet, and all offices and agencies falling under the control of those Cabinet members. (Cabinet members include the Secretaries of State, Agriculture, Health and Human Services, Education, Commerce, Labor, Defense, and the Interior.) The Legislature consists of the House of Representatives and the Senate, collectively called Congress. The judicial branch is the Supreme Court of the United States (SCOTUS), the federal courts of appeals (largely based on geographic region), nearly 100 federal district courts (also based on geographic region), and a number of other courts based on substantive matters (such as bankruptcy courts). The interplay between the three branches of government is dictated by the Constitution. Lawyers, politicians, and others working in government or related fields commonly refer to this interplay using terms such as “separation of powers” and “checks and balances.”
So, how do all those people in power get there? A quick review. The President is elected every four (4) years by the Electoral College. The President appoints a Cabinet, who must be confirmed by the Senate. (Ah ha! A check on the President’s power.) Members of the Legislature are elected by the voters. Senators serve terms of six (6) years, with approximately one-third of the Senators up for election every 2 years. Representatives serve terms of two (2) years and seats in the House are up for election every even numbered year. SCOTUS justices are nominated by the President and confirmed by the Senate. Once on the bench, justices have lifetime appointments unless they resign, retire, or are removed through an impeachment process.
Ok, now the people are in power. What exactly are those powers? Here’s an overly simplified explanation. Congress makes statutes by writing bills, voting on the bills, and then sending those bills to the President for a signature making the bill into an official statute. (If the President does not sign the bill, Congress can override that Presidential veto with a certain greater number of votes.) Congress also controls the money and holds the power to declare war. The President is the head of state and the Commander in Chief of the armed forces. As Commander, POTUS can send troops into battle without an official declaration of war from Congress. As the head of state, POTUS can sign bills into law, issue certain Executive Orders, and control the Executive Branch, which executive offices and agencies create and issue regulations that interpret and give greater context to the statutes enacted by Congress. SCOTUS reviews problems with statutes, regulations, other government actions, and various private activity to determine whether anything conflicts with the Constitution, including the Bill of Rights and all subsequent Amendments. If so, the Constitution wins. SCOTUS may also review problems for a number of other reasons, but only if those reasons for review are set out in Article III of the Constitution. You see, SCOTUS is a court of what’s called limited jurisdiction – it can only review cases specifically delegated to it, and the rest are reserved for lower federal or state courts. (By the way, the same thing happens with Congress and POTUS… specific powers are granted to the federal government and the rest are relegated to the states. This is called federalism.)
To get a case before SCOTUS, first you file a petition to be heard. The justices then decide whether or not to grant that petition. Every case filed receives at least this initial review. Most cases are rejected at this point, but a few will go through to a hearing. If the case is granted a hearing, then you know you’ve got an interesting problem. The parties submit briefs to the justices explaining their arguments and points of view. In addition, some “friends of the court,” or amici curiae in Latin, might submit briefs explaining other arguments. Each “friend” brief is commonly called an “amicus” brief. SCOTUS itself decides whether or not any particular amicus brief may be filed.
SCOTUS has nine (9) justices, each appointed by POTUS and confirmed by the Senate. Since these justices cannot be removed except in very rare circumstances and receive a lifetime appointment, those appointments are extremely important in shaping American law. This is particularly true because there really isn’t any check or balance on SCOTUS decisions, except for a subsequent set of SCOTUS justices reversing a prior decision. Reversing prior decisions, however, is rare because of the importance of precedent and the concept of stare decisis.
The stark problems with the nuclear option just exercised by the GOP Senators and Gorsuch’s appointment to the bench should be apparent. Once seated, a SCOTUS justice gets one of only nine votes FOR THE REST OF HIS OR HER LIFE. Further, once that vote is cast, whatever the majority decision is, it’s very likely here to stay. Few moments in American democracy bear comparable need for separation of powers and appropriate checks and balances.
The GOP, however, just eroded that Congressional check on Presidential power to appoint a SCOTUS justice (and I haven’t even mentioned what those same GOP Senators did to Merrick Garland, the person who should be sitting on the SCOTUS bench instead of Gorsuch).
The very fabric of our democracy just ripped like the seat of someone’s pants.
Did you hear it? Do you feel the breeze?
This past week, a committee of the Seattle City Council approved an ordinance that, if approved by the full Council, will require businesses in the city to provide compensated sick leave to their employees. Local news coverage of the developing story is available here, here, and here. Some think of this effort as an important public health measure, designed to encourage sick employees to stay home. Others think of it as an unnecessary increase in business operating costs.
First, let’s take a look at a few of the specifics in the ordinance. Paid sick leave accrues at varying rates depending on the size of the employer (1 hour of leave for every 30-50 hours worked), and the rates increase with the size of the employer. Similarly, the maximum amount of sick leave that an employee might accrue depends on the size of the employer (40-72 hours per year), and the limits increase with the size of the employer. Unused sick time from one year rolls over to the next. Sick leave may be used for a variety of reasons, including an employee’s personal illness (mental or physical), to get preventive health care (such as an annual check-up), to care for a sick family member, and numerous reasons associated with domestic violence, sexual assault, or stalking (including legal proceedings). Employers may not retaliate against employees for using their sick leave. New businesses are exempt from compliance for 2 years.
Then take a look at the details of how employees will access their sick leave. All requests for sick leave should include the expected duration. If possible, the request must be submitted in writing at least 10 days in advance. Documentation (such as a doctor’s note or, in the case of domestic violence, a police report) may be required, if an employer so chooses, for leave lasting more than 3 consecutive days.
Finally, take a look at how the sick leave mandate will be enforced. A claim by one or more employees that an employer violated the ordinance must be submitted in writing to the Seattle Office of Civil Rights within 6 months of the violation. The Seattle OCR will investigate the claim and determine its validity. If the claim is determined to be valid, then the parties can settle it (probably meaning that the employer pays the employee some sum of money) or the claim can go forward for additional prosecution either by the employee(s), in court, or by the Seattle City Attorney, before the Seattle Office of the Hearing Examiner. If a hearing starts with the Office of the Hearing Examiner, then the employee(s) lose their right to proceed in court. There is no time limit for OCR to issue its determination; the ordinance simply says that the determination must be issued “promptly.” That determination is a precursor for any further proceedings. In other words, an employee cannot sue in court without the OCR decision.
A few thoughts and questions about this law and real life:
- Who is served here? Employers? Employees? Customers?
- Smaller employers may be concerned about increased operations costs, but are the costs worth the benefits? One or two days off to recover from a cold, for example, may be better than a week’s worth of decreased productivity on the job and the risk of getting other employees sick.
- What about the proof? How many employees will be able to get a doctor’s note if they have the flu and it takes a week to get over it? What about employees seeking paid sick leave because of domestic violence — is it reasonable to require that these survivors submit police reports and other documentation of abuse to their employers?
- What about the records? Employers are supposed to keep the proof separate from the personnel files when the proof contains medical diagnoses. Is it reasonable to mandate that smaller employers do this? How would employees find out about violations?
- Employers are not allowed to fire employees for taking sick leave, but they can fire at-will employees for a variety of other legitimate business purposes, and if they can show that those other reasons exist, then the employees are probably out of luck.
- It might take a really long time to process a claim… is a decision for the employee, issued 3 years after the violation, worth much once it finally arrives?
- A few years back, President Obama backed the Healthy Families Act (stuck in committee since 2009), which included a similar sick leave provision. (Read a bit about it here.) Is it better to go national with this kind of law? Would it ever pass? Consider similar efforts at the local level in Milwaukee, San Francisco, Denver, Washington D.C., Philadelphia, and New York City. Also consider efforts at the state level in Connecticut, Massachusetts, and California. If it’s a local issue, would businesses move out of the area to avoid compliance?